Dismissing a Probation Violation

Who can dismiss a probation violation? A probation violation report is not a new criminal charge. It is, rather, a “statement of the violations alleged” under G.S. 15A-1345, necessary to give a defendant the notice that is constitutionally and statutorily required before the court may respond to a violation. (Violations of unsupervised probation are governed by the special notice rules set out in G.S. 15A-1344(b1).) And yet, probation violation reports are often “dismissed” like criminal charges. Sometimes there are technical problems with an allegation, like when it wasn’t filed before the case expired, or when the probationer is alleged to have violated a condition to which he or she is not actually subject (like an absconding violation by a probationer who falls within the absconding donut hole). Sometimes, an alleged violation is rolled into a plea negotiation where the State agrees not to go forward on a violation in exchange for a defendant’s guilty plea to a new criminal offense. And sometimes, a person previously in violation has since come into compliance—perhaps by paying off some monetary arrearage, or by completing community service hours on which he or she had fallen behind. Nobody seems to have much trouble with dismissals at an actual violation hearing. Many appellate cases note “motions to dismiss” violations without disapproval. See, e.g., State v. Black, 197 N.C. App. 373, 374 (2009) (“Defendant filed a motion to dismiss the probation violation charge and argued the court was without jurisdiction . . . .”). Violations not found by the [...]